Avoiding the collision between rational and emotional messages
In their book, Made to Stick, Chip Heath and Dan Heath described research that sought to discover whether people would donate less money to charity if the request was preceded by statistical information. “The results were shocking. The mere act of calculation reduced people’s charity. Once we put on our analytical hat, we react to emotional appeals differently. We hinder our ability to feel." To understand the California business and corporation law hire a lawyer and get business lawyer free consultation in California.
Obviously, when asking a jury to award damages, we must present calculations that include both economic and non-economic compensation. The calculation of economic damages is based on cold, hard facts, but the jury must be emotionally engaged to feel that such damages are warranted. The award of non-economic damages should be driven by emotion that jurors can justify with rational thought. But if the act of calculation hinders the ability to feel, then how can we achieve our goal of keeping the emotional brain engaged?
Start with the culpability of the defendant for the harm inflicted on the plaintiff. Next, talk about the harm in ways that will evoke emotions when jurors think about how they would feel if the harm were to a loved one, or maybe themselves. Then, introduce the subject of what money will be required to compensate for the harm. That way, the emotions are not muted by the analytical brain’s calculations. But remember: the rational brain must be able to justify what the emotional brain wants to do. This is where a type of reverse per diem, argument might be appropriate.
A. per diem argument is one in which the lawyer suggests that the damage award be based on a specific daily sum that is multiplied by the number of weeks, months or years of loss or suffering. A reverse per diem argument focuses on what daily amount is clearly inadequate. Think of a common purchase that everyone knows about; a cup of coffee at Starbucks, or a Happy Meal from McDonald’s. Here’s how it works: A small latte or espresso from Starbucks costs... what? about five dollars. Would it be appropriate if the defendant said to the plaintiff, “Tell you what. To compensate you for your lost fingers, we’ll buy you a cup of coffee in the morning and another in the evening. That’s ten dollars times 365 days a year times thirty-five years.” Does that sound adequate to you? That’s an insult; an outrage. That calculates out to $127,750. Now we know what amount is inadequate.